Constitutionalizing the Federal Criminal Law Debate: Morrison, Jones, and the ABA

Abstract

This article considers impact of recent Supreme Court cases on reach and interpretation of federal criminal law, and extent to which debates about that law should be more grounded in constitutional considerations. Special attention is paid to problem of statutes with jurisdictional elements, using Hobbs Act as an example. The article begins with what Professors Abrams and Beale call great debate on nature of federal role. This debate is generally presented as a matter of how far Congress should go in developing our system of overlapping state and federal crimes. It was assumed, certainly before Lopez, that constraints on Congress were few. There is a wealth of scholarly analysis of Lopez and its impact on federal power. However, to some extent, debate on federal criminal law remains cast as primarily one of policy. The article examines report of American Bar Association's Task Force on Federalization of Criminal Law. It considers both Report's analysis of present system and its recommendations to Congress. The analysis reflects a strongly federalistic approach. However, despite federalistic premises, there is relatively little discussion of possible constitutional limits on Congress. After Lopez, these considerations would bolster Report's analysis and conclusions. The article notes in particular strength of an individual rights critique of dual systems of criminal law, and suggests that it fits comfortably within classical notions of federalism as advancing protection of rights. The Report was written after Lopez but prior to recent decisions in United States v. Morrison and Jones v. United States. The article discusses these cases in some depth. Morrison is presented as primarily a reaffirmation of Lopez. Of particular interest are dissents of Justices Souter and Breyer; for example, former criticized current majority's approach as a doomed attempt to return to the federalism of some earlier time. In light of sharp Lopez-like disagreements in Morrison, decision in Jones is somewhat surprising. The specific result was narrow construction of a federal arson statute. What is striking is that constitutional concerns played a substantial role in this construction and that Justice Ginsburg - a Lopez dissenter - cited Lopez as source of these concerns. Jones involved a statute with a jurisdictional element. The article turns to questions raised by such statutes, noting that majority opinions in Lopez and Jones suggested a hospitable approach toward them. The general question is how to transpose limits on Congress' power to legislate over a class of activities to context of individual instances of an activity. Serious theoretical problems are present. For example, should courts aggregate effect of individual acts when a statute contains a jurisdictional element, thus suggesting a focus on individual case? These problems are surfacing in litigation under Hobbs Act. Ultimately, Supreme Court will need to clarify constitutional and other issues presented by statutes with jurisdictional elements.